FEDERAL COURT OF AUSTRALIA

NADO v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 215

MIGRATION – identified member of social group in Russia comprising male homosexuals – stress arising from that identity not actual persecution – instances of harm isolated - not condoned by authorities – isolated beatings of applicant in Russia – no evidence of sustained or systemic harm to applicant – adequacy of protection of homosexuals in Russia in post Soviet era – protection visa application made more than 3 years after arrival in Australia - without satisfactory account for delay – applicant in person at court review of Tribunal decision refusing visa application – written advice provided to applicant after Tribunal decision from counsel engaged in migration legal advice scheme - economic persecution - RRT applied itself to “real question in issue” – new allegations of persecution at Tribunal and again in court proceedings – findings by Tribunal adverse to credibility of applicant’s claims – no denial of natural justice by Tribunal – unnecessary to consider whether jurisdictional error committed by Tribunal.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 91R

Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 206 CLR 323 cited

Rajanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 143 cited

WAEC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 147 cited

WAEW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 260 cited

Attorney-General for New South Wales v Quin (1990) 170 CLR 1 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407 cited

Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 cited

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

NADO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1170 OF 2002

CONTI J

20 MARCH 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondents costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant has applied to the Court for review of the decision of the Refugee Review Tribunal (“RRT”) made on 15 October 2002 to refuse to grant the applicant a protection visa. His application for review filed on 7 November 2002 is purportedly made pursuant to s 39B of the Judiciary Act 1903 (Cth), upon the footing that the RRT exceeded its jurisdiction and erred in law in arriving at its decision. The applicant informed the Court that he had “borrowed them [the grounds for review] from my friend’s application… this friend already had a Federal Court hearing but I had no lawyer”. No reasons or particulars appear in the application for review in support of those grounds.

2                     The applicant, a citizen and national of Russia, was born on 17 March 1963, and arrived in Australia on 6 February 1999. His ethnic group is Russian, and he lived in Vladivostok prior to journeying to Australia. He was educated to a secondary school level, and subsequently attended the University of his Russian State. His visa application disclosed his qualification as an engineer. This was obtained in 1985.

3                     The applicant was permitted by his visa to remain in Australia until 15 March 1999. He overstayed his visa for more than 3 years and was detained at Villawood Detention Centre on 12 April 2002. On 17 May 2002, he sought assistance for the purposes of applying for a protection visa, and on 27 May 2002, he lodged an application for a protection visa with the Minister. A delegate of the Minister refused to grant the protection visa, and on 27 June 2002, the applicant sought a review of that decision from the RRT.

4                     The basis of the applicant’s claim for fear of persecution in Russia for Convention related reasons, was said to concern his “membership of a particular social group”, relates essentially to his homosexuality. The RRT recorded at some length its investigations into that claim, and the applicant’s evidence given to the RRT, which I would summarise below as follows:

(i)         the applicant recognised himself to be homosexual since he was 18 years of age, which was “around 1981”;

(ii)        at that time, Russia was part of the Soviet Union, which treated homosexual acts as a crime punishable by imprisonment;

(iii)       since the disintegration of the Soviet Union and its communist political and administrative base, the homosexual acts that attracted penalties in the past have been decriminalised;

(iv)       changes to the law do not always equate with complete relaxation of social resistance to the notion, existence and presence of homosexuality;

(v)        the applicant resided at home with his parents after leaving school, and they knew of his personal circumstances and welcomed his partner into their apartment;

(vi)       the applicant suffered an unpleasant incident of assault and abuse for being homosexual from a boat crew, when he journeyed with colleagues on a scientific expedition in 1988, in relation to which the police responded with indifference;

(vii)      the applicant continued working in the same place with the same colleagues until 1989 and then worked with another company before coming to Australia in 1999 with a relatively long-term homosexual partner;

(viii)      some weeks before his departure to Australia, a male person with whom he was acquainted from his school days, accompanied by two friends of that neighbour, physically assaulted the applicant without provocation; the police response was again said to have been indifferent, and subsequently degenerated into police threats, and ultimately an occasion of physical assault by the police, after the applicant had complained of police inaction; and

(ix)       an official complaint thereafter made by the Applicant to the prosecutor’s office resulted in advice to withdraw his complaint, lest he be charged with an offence.

5                     The Tribunal member made the following observations in relation to the incidents recounted by the applicant up to that point of his narrative:

“…None of this evidence, however, suggests that his sexuality was ever an issue, the whole problem evidently arose out of the police, most unreasonably, reacting to an individual instance of criticism regarding their level of responsiveness to an assault complaint.

Interestingly, this interview to which the Applicant was invited was, later in his evidence, portrayed as a period of enforced detention. There is further discussion of that seemingly contradictory evidence, and also of its alleged provenance, below.

Throughout all of his evidence, the Applicant’s account of all the serious harm towards him that was apparently motivated by hatred of homosexuals amounts to very few isolated and sporadic events. If they were linked at all, then they appeared to spring from the one narrow stream: his closer circle of acquaintances all being linked to him from his school and university days, when it was first revealed to them that he was homosexual. Meanwhile, however, his own family was evidently tolerant and he had managed to stay with the same employer for over a decade before coming to Australia.”

6                     The Tribunal thereafter recorded its questioning of the applicant and his responses thereto, as follows:

“The Tribunal asked the applicant about the prospect of moving away from his bigoted neighbour and living independently, now that he was a mature adult. In reply, he said it was convenient for his mother and grandmother that they all live where they lived rather than move. This part of the applicant’s evidence strongly indicated the pre-eminence of choice over issues of potential survival. The Tribunal pointed out that the applicant and his family are now living apart and that this might be an indication of the viability of living away from his former neighbourhood and its unhappy memories in future. In reply, the Applicant said, “I agree”. He went on to say that he could live happily on his own for a while but that he would still have problems at his place or work due to his colleagues having connections with his past. The Tribunal then put it to him that he was no longer working at the same place these three years past and that it might be open to him to seek work elsewhere in Vladivostok. In reply, the Applicant said he preferred to work in his specific, specialised field. The Tribunal then put it to the Applicant that he might be even less able to work in his chosen field in Australia given his lack of English, and that he still wanted to live here. He did not respond satisfactorily to this position.

The Tribunal asked the applicant who would be likely to harm him if he went back to Vladivostok. In reply, he said he would not be able to go to the police if anyone else hurt or threatened him. He indicated he was afraid of the police but in no way demonstrated that the police had ever actually harmed him, or would do so. It was clear from two widely separated instances that separate police units failed to prevent him from being beaten by civilians, and that they were a complete disappointment when it came to investigating the complaints he made to them. However the failure of the police in these instances did not strike the Tribunal as being the thin line between the Applicant being protected from harm arising from perceptions regarding his homosexuality.

The Tribunal asked the Applicant to provide information regarding to (sic) his application history. He said he came to Australia with his partner, a yachtsman who had visited Australia before. He said that when his last problem arose, with the neighbour and the police, his partner suggested they both come to Australia and seek asylum together.

The Tribunal asked the Applicant why, in the claimed circumstances, it took him three years to apply for a protection visa in Australia. In reply, the Applicant said that he and his partner planned to apply together, but that his partner’s parents were old and sick and that this cause (sic) them to delay applying. The Tribunal takes this to mean that it might have been necessary for the partner to fly home to Vladivostok at short notice, leaving the Applicant on his own.

The Applicant went on to say that visa extensions were not granted to him and his partner by DIMIA and that they needed to work, nevertheless, to support themselves.”

7                     The Tribunal’s observations at that stage of its reasons for judgment upon those responses from the applicant were as follows:

From this evidence it appears that the Applicant and his partner did not make detailed enquiries about the asylum seeking process and concomitant duties entitlements as soon as they arrived, in spite of the claimed intention of their visit being to seek asylum in the first place. Had they done so, they might have learned that they were eligible for work permits on condition that they did not delay their protection visas beyond a specified period, a condition that in all probability they could easily have met. All this leaves the Tribunal with the impression that protection in Australia was not treated by the Applicant as a high priority. It does not appear to have been even a low priority, for the Applicant found work and still did not apply for a protection visa. As noted, the first evidence of an intention on his part to apply for protection in Australia appeared on 17 May 2002, almost five weeks after his detention. Even after his partner was detained and deported a year ago, the Applicant did not behave as though his situation were now more urgent, for he did not apply for protection even then.

The Tribunal asked the Applicant why he did not apply for protection when his partner was detained. In reply, the Applicant said he was at a loss at the time; he added that he thought he would not be allowed to apply. He did not argue on what basis he would ever have thought this, and it seems incongruous that he ever should have thought this for, in his words, the only thing that initially delayed his applying was the state of his partner’s parents, rather than the prospect of being barred from applying. Again it is clear that the Applicant evidently made no enquiries about his rights to apply for protection in Australia.

The Tribunal asked the Applicant for news of his partner. In reply, he said that his parents occasionally receive visits from his partner. The Tribunal ascertained, meanwhile, that the Applicant’s parents know of and tolerate the relationship between the Applicant and his partner. There being evidently no other significant news, the applicant’s evidence left the Tribunal with the impression that his partner is not in serious danger of harm in Vladivostok.”

8                     The applicant demonstrated in the course of the RRT hearing a tenacious capacity for generating successive written submissions embodying fresh claims as to his unhappy experiences in Russia. Thus further detailed written submissions concerning alleged youthful experiences, which he had previously not mentioned to the RRT, were provided by the applicant to the RRT subsequent to the RRT hearing, and prior to its decision-making, the content of which the RRT summarised as set out below:

“One of these, dated 28 August 2002, contains a purported translation of a purported medical certification (unseen by the Tribunal) of the injuries sustained by the applicant in the 1998 beating. It also includes a purported translation of a purported document (also unseen by the Tribunal) ostensibly certifying the Applicant’s “detention” by the authorities for three hours on 20 October 1998, over three months before he came to Australia.

This “detention” was described by the applicant himself as a harrowing session, in which he was warned about the consequences of not withdrawing his complaint. He did not describe it himself as a period of “detention”. It is of interest to the Tribunal that the original Russian document (unseen by the Tribunal), of which this is supposedly a true and correct translation, was supposedly prepared on 1 August 2002 by the “Ministry of Internal Affairs of the Russian Federation”. Its date, so long after the claimed interview, gives it the strong appearance of having been solicited, in this case, the Tribunal infers, by someone in Russia intending to assist the Applicant. The incongruous thing about this document is that the ‘Ministry of Internal Affairs of the Russian Federation’ ever created it in the first place. The Applicant’s claimed recollection of the interview was that he was invited to attend it, not that he was ever detained. Furthermore, the Applicant’s claimed recollection of the interview was that his interviewers moved to bury the whole matter over which it was convened in the first place. It therefore appears most odd that the ‘Ministry of Internal Affairs of the Russian Federation’ would be owning up to having detained the Applicant in its only response to a police violence matter raised by him through the Public Prosecutor.

The next submission, dated 6 September 2002, comprises three parts, the first a hard copy of RRT research requests in matters the adviser regards as similar to the Applicant’s, the second a written statement from the Applicant himself, and the third an extract from the Melbourne University Law review concerning refugee claims on the basis of sexuality in Australia and Canada.

Another submission was received directly from the Applicant. It is a copy of the statement from him that was included in the adviser’s submission. That statement alters some of the Applicant’s earlier evidence about not attempting to move out of his neighbourhood due to the possibility of trouble following him. Now he was claiming, quite differently, that he did move into a flat with his partner and that their address was vandalised with “anti-gay” graffiti. The Applicant made another new claim in this statement, citing a previously undisclosed aspect of his rough-handing by the police in 1998. He now claimed that he was forced to perform oral sex with one of the officers and threatened with an immediate spell behind bars with criminal detainees where he would have been sexually victimised further by fellow inmates.”

9                     The initial response of the RRT to those post hearing written submissions was as follows:

“It is of concern to the Tribunal that the Applicant did not mention these new claims during previous opportunities. His delay in discussing them is at odds with his preparedness to discuss the other mistreatment he claims to have received, for example, in 1988 and 1998, and with his arguable frankness with the Tribunal about his sexuality and his discovery of it.”

10                  The RRT next extracted a number of segments of country information, particularly in relation to criminal law enforcement in Russia, the treatment in Russia of “informers, homosexuals, rapists, prison rape victims, child molesters and others… considered to be ‘untouchable’”, who were “treated harshly, with little or no protection by the prison authorities”. The RRT observed that what I have extracted “…goes some way to supporting the Applicant’s claims about ongoing popular disdain for homosexuals in Russia”, but also that “…this observation does not in any way support the position that non-criminals at large in a Russian society would translate their disdain into the kinds of harm that homosexuals might face in prison”. The RRT also referred to the country information that “gay” communities in other parts of Russia, such as St Petersburg or Moscow, are much larger and are integrated into urban fabric, in contrast for instance to Vladivostok. Incidentally, the applicant’s partner, who came to Australia one month prior to the applicant, did not apply for a protection visa, after his visitor’s visa had expired, and returned to Russia after first being detained in Australia.

11                  The RRT’s findings and reasons were recorded at some length in support of its affirmation of the decision of the delegate not to grant the applicant a protection visa. Those findings and reasons included the following:

(i)         the applicant’s homosexuality is an immutable characteristic, and it is his right to give and seek love where he wishes and where he can, as it should be with heterosexuals;

(ii)        the RRT saw no reason to find that homosexuals do not constitute a cognisable group in Russian society and that it was easy to accept that the applicant would be a member of a particular social group in Russia for reasons of his homosexuality; nevertheless it is quite another matter for the applicant individually to be perceived as a homosexual by everybody, or even anybody, wherever he goes, no matter what he does or does not do in the presence of other people in Russia, which had not occurred at least in his case;

(iii)       it is understandable that a well-founded sense of social stigma might make the applicant prefer to keep his homosexuality to himself, and that this may have caused him stress; nevertheless stress arising from “internalisation” of that aspect of his identity cannot reasonably be regarded as a condition amounting, even over time, to actual persecution by others for reasons of something perceived by them about the applicant;

(iv)       the applicant’s evidence strongly supported the impression that his membership of a homosexual group was not obvious nor of interest to the majority of the population around him most of the time, in spite of that status evidently having got him off on a poor footing at school and university, and making him feel a degree of shame in his formative years under the Soviet laws and codes. Particularly in his most recent years in Russia, the applicant had enjoyed continuity of domicile and income, living at the same home and working with the same employer for several years. By his own evidence, the applicant’s sexuality was known to his family (for whom it is not a serious issue), his neighbours, his employers and his colleagues, yet the instances of actual harm towards him which he attributed to the knowledge of others of his sexuality have been few in number, isolated over time, and highly individualised, and there was no evidence of the authorities condoning or encouraging mistreatment of the applicant;

(v)        there was no evidence moreover of knowledge of the applicant’s sexuality leading to anything that could be called sustained or systemic harm towards him. Nor did the applicant’s evidence demonstrate that the authorities have failed to protect him, especially given the isolated and sporadic nature of the allegedly discrimatory attacks on him; the applicant had suffered no serious physical harm motivated by perceptions about his sexuality, outside of the beatings he received on the boat in 1988 and the attack from the neighbour in 1998;

(vi)       on the basis of the applicant’s evidence, the Russian state has provided adequate protection for persons such as the applicant, in the post-Soviet era, in maintaining or guiding Russian cultural tolerance, at least to a degree where the variously described attacks on him, and certainly those occurring after 1993, were isolated, individualised and scarce, if not slight;

(vii)      in relation to the episode of assault in 1998 that supposedly motivated the applicant’s flight to Australia, the applicant’s evidence of what happened showed only that the police did not like being told that they had failed to bring his complaint to a conclusion which he would have liked; moreover the applicant accepted that he may have been “a little vehement” in his complaint to the police, and his account showed in any event that the police responded to him, albeit in a short-lived manner, the way they reportedly tend to do to any persons who cross or criticise them, whether the conduct of the citizen present be criminal or innocent;

(viii)      for a number of reasons, the RRT had serious problems with the quality of the evidence he gave about the beating he received from the neighbour in 1998 or, more particularly, about what supposedly followed at the police station, and in the hands of the Internal Affairs officers; in any event, the Tribunal found that the harm the Applicant alleged to have received from the authorities, after the claimed beating by the neighbour, was not Convention-related, and further that it was sufficiently clear from his evidence that they did not harm him because he was homosexual, but because at the two stages the subject of complaint, in the police station, and subsequently in the office of Internal Affairs, the authorities took poorly to his criticism of their approach to what amounted to an individual complaint; and

(ix)       it was material that nothing of significance occurred to the applicant after the asserted events of October 1998, although he remained in the same home, job and city for several months after the interview and before his departure to Australia; in fact “…he had managed to stay with the same employer for over a decade before coming to Australia”, as the RRT specifically found; those circumstances “argued strongly” that the police had no interest in persecuting him, or in continuing to persecute him, for reasons of his homosexuality.

12                  The RRT also found that there was “evident inconsistency” in the applicant’s evidence about the vandalising of the residential flat he claimed to share with his partner, prior to departure to Australia. It could think of no sound reason why that event was not mentioned earlier in the course of the initial RRT hearing, being a claim not just of vandalism said to have been directed against him, but also in effect a new claim about having lived away from his former neighbourhood in Russia in the first place; the RRT said that it could not rely on the applicant’s evidence regarding this alleged unsuccessful attempt to live with his partner in a flat of their own, and concluded that he had exaggerated a situation relevantly in response to a position previously put to him by the RRT, to which he had given “a very different and unsatisfactory answer”.

13                  The RRT also came to a similar negative conclusion about the degree of degradation the applicant claimed to have sustained when the police supposedly beat him; it regarded that claim as an improvised revision, but in any event, stressed that the event was an isolated incident even when taken at face value, as was the assault that was said to have occurred, being an incident of degradation occurring not by reason of the applicant’s sexuality, but of his daring to confront the police with complaints. The RRT concluded that “the claimed mistreatment of the Applicant by the Russian authorities appears very individualised, localised, short-lived and lacking in ongoing consequence”. The only “follow-up” to the 1998 police beating comprised the Applicant’s own action in taking his cumulative complaints to a higher level. In the end, the applicant by his own evidence went free after a three hour Internal Affairs interview, or so-called ‘detention’, and remained at large, at his own address and in his job, evidently free of disruption, until he and his partner were ready to leave for Australia, some months later.

14                  The RRT further concluded that it had the greatest amount of difficulty in accepting that there was ever a genuine certificate from Russia’s Internal Affairs Ministry purportedly attesting to the detaining of the applicant for three hours in October 1998; moreover the certificate suggested the infliction of much harsher treatment of the applicant than he himself claimed in his earlier evidence. The RRT concluded from the very recent date appearing on the document, and given the far-fetched notion of the Ministry attesting to the detention of a person who did nothing more than complain through the Public Prosecutor about police mistreatment, that the so-called Internal Affairs Ministry certificate reflected the product of an ill-judged desire on somebody’s part to strengthen the applicant’s application by improper means.

15                  The RRT therefore finally concluded, on the basis of the applicant’s evidence of long-past and/or highly isolated and individualised attacks on him, that he greatly exaggerated the risk he faced, and would face in Vladivostok in particular, if he was to be returned to Russia; moreover the applicant did not provide satisfactory reasons for his delay in applying for protection after he arrived in Australia, and he had demonstrated a pattern of behaviour that was highly inconsistent with what one would reasonably expect to be the actions of a person who supposedly came to Australia to seek protection with a fellow asylum seeker, or of a person who believed “in his own heart and mind” that serious harm or persecution would be unavoidable back in Russia. All those findings confirmed the RRT’s view that the applicant’s claimed fear of persecution was not genuine, and that underpinning the claim was the applicant’s belief that Vladivostok did not offer its male homosexual community the same kind of variety, diversion, lifestyle and affirmation that might be enjoyed by many of its members in places outside of Russia, such as in some Australian cities.

16                  Despite directions that written submissions be provided by the parties in advance of the court hearing date, no submissions in writing were provided by the applicant, except for what appears in “exhibit 2” later identified. In that regard, he informed the court that the Deputy Registrar told him that “a written submission is not necessary”. The applicant appeared in court without legal representation, though with the assistance of an interpreter. At the outset of his appearance in court, the applicant informed me that he told the RRT certain facts which its findings ignored. In response, I required the applicant to give evidence on oath as to those facts, which he duly proceeded to do. I said to him that strictly speaking he was not normally entitled to submit new facts to the court, which should have been, but which had not been, placed before the RRT in the first place.

17                  The court proceedings had originally been listed for hearing on 4 February 2003. However on the application of the applicant, I extended the hearing date until 25 February 2003, upon the basis that he was consulting Mr Ian Archibald of counsel pursuant to a migration legal advice scheme as to his prospects of success.

18                  At the hearing on 25 February 2003, the applicant tendered a written advice of Mr Archibald as “exhibit 1”, which informed the applicant of the threshold thereof as follows:

(i)         there was no evidence of a lack of bona fides on the part of the RRT likely to support a successful appeal on that basis;

(ii)        it could not be said that the RRT’s decision did not relate to the subject matter of the Migration Act 1958 (Cth); and

(iii)       the RRT’s decision was reasonably capable of reference to the power given to it by the Act.

19                  However, Mr Archibald proceeded to advise the applicant that it was arguably open that the RRT committed 2 jurisdictional errors, one being that the RRT did not address “…the possibility of economic persecution in the form of repeated termination of employment or demotion”, and the other being that the RRT “failed to apply itself to the real question on the issue”.

20                  As to the first of those arguable jurisdictional errors, Mr Archibald advised that although in Australia, economic proscription in relation to a refugee had been narrowly defined to focus on situations of total exclusion from remunerative employment, a Canadian case identified as Juan Alejandrs Araya Heredito, reported in “Hathaway’s The Law of Refugee Status” (Butterworths 1991 p.122), had decided that persecution may occur in circumstances where in order to survive, a person is forced to accept work manifestly incompatible with occupational training. Mr Archibald further advised that there was evidence of significant economic hardship experienced by the applicant in Russia, which could be said to constitute “serious harm” within s 91R of the Act, and which had threatened the applicant’s capacity to earn a livelihood, and further that by failing to address those matters, the RRT may have applied the wrong test, misconceived its duty, failed to apply itself to the real question to be decided, or misunderstood the nature of the opinion it was to form, and reference was made by Mr Archibald in that context to the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Yusef (2001) 206 CLR 323 which concerned the former s 476 of the Act.

21                  Additionally, Mr Archibald advised the applicant that a second argument was possibly open on the basis that the applicant’s “core human rights” had not been protected, being rights described in the International Covenant on Civil and Political Rights which included a right to equal protection (Article 27), rights to the protection of personal privacy and integrity (Articles 17 and 23), and rights to internal movement to the choice of residence and to liberty of expression, assembly and association (Articles 19 to 22). Mr Archibald cited the following passage from Hathaway (ibid) at p.110, namely that “… the failure to ensure any of these rights will generally constitute a violation of a state’s basic duty of protection unless it is demonstrated that the government’s derogation was strictly required by the exigencies of a real emergency situation, was not consistent with other aspects of international law, and was not applied in a discriminatory way”. Various possible examples (being 8 in number) were duly listed.

22                  After setting out what he described as the “arguable” or “possible” jurisdictional errors outlined in the 2 preceding paragraphs, Mr Archibald added in his letter of advice the following cautions:

“I stress that I do not give any guarantee of their success, and in fact I would say that it is more likely than not that they would not succeed.

…

If you wish to continue with your appeal, urgent work will need to be done including preparation of a Submission and an affidavit, or Statement of Claim to accompany the General Application to the Court.”

No such affidavit was submitted to the court.

23                  The applicant also tendered to the court as “exhibit 2” a handwritten document, which repeated certain matters contained in Mr Archibald’s written advice, and which concluded with the following purported testimony:

“The work I was ultimately forced to do was manifestly incompatible with my occupational training. The Tribunal had a (sic) reasonable evidence of how I was repeatedly forced to change jobs and was demoted once my sexuality became known. This was not addressed in an appropriately serious way by the Tribunal.”

24                  Lastly, the applicant tendered to the court as “exhibit 3” the following extract of the transcript of his testimony to the RRT which in the unusual circumstances of the case merits reproduction in full:

“Member:       So what do you think will happen to you if you go back to Vladivostok?

                        Might you not put your life ahead of the convenience of your family who have already trained to live in the flat without you… and stay in another suburb of Vladivostok? Won’t you be forced after all this time to look for a job somewhere else and not go back to the people you left? Isn’t a new life in Vladivostok almost a necessity now after so long?…

Applicant:       Well I don’t know what to expect in the event of my return… I tried to approach the police…

Member:         Well you don’t need to approach the police now… you know that that’s useless your aim now is to stay away from gay bashers… and ahm prying family neighbours… there must be more anonymous accommodation.

Member:         cultures in big cities… one bedroom units or shared accommodation full of men-men, women-women, men-women, and…

Applicant:       Well I don’t know… there are many blocks of units in Vladivostok and there are no real… small single houses.

Member:         There must be a fair amount of men living with men who may or may not be in relationships… for outside eyes… and in such great numbers that you for a moment to imagine what’s going on in there…

Applicant:       In Russia it’s not accepted for men to live together well unless they are brothers or something – usually people live in families… so if you had two men living together… that would arouse the suspicion of the neighbours…

Member:         Does he live alone?

Applicant:       I don’t know… Well perhaps if I were to move to a different area and for a while the attacks may stop but what about work? I’d like to get a job in my own field…

Member:         Mm… you’ll have to consider that… consider given the past what’s reasonable – what’s possible and what’s impossible.

Applicant:       As far as the police is concerned – I’m not entirely sure that the police will leave me alone even there… The police stations are all interlinked and even if a person moves to another town… information

Member:         Why would the police actually harm you as distinct from ignoring your calls for help?

Applicant:       Well I submitted my statement to the police and about a month later in October or towards the end of October I went to the police again…

Member:         In Ninety-eight?

Applicant:       Yes. I wanted to enquire about the progress of the investigations… I saw a neighbour and he didn’t seem upset at all.

Member:         Ok. I see here that you know… I see here where you mention it in writing that you were beaten by the police during this enquiry about… I have the answer here… Ok. Sorry I’ve omitted… Well look… I’ll consider your claims of course… ahm I should ask your advice if there are any questions that you’d like me to ask you… You are a what we call a “detention Case” in the Tribunal because your life is a bit more under pressure than that of others… ah we nearly always grant a period of further submissions – just in case you get back to the Detention Centre and think you know “why didn’t I mention that” or “why didn’t I give that detail in response to a particular important question”… so I’ll grant you until the end of next week… I’m not… about Thursday… I’ll make it the close of business Friday… any further thing you’d like to say to me, any legal argument, any articles or…”

25                  The applicant orally stated or submitted to the court the following matters through his interpreter which require reproduction (part appears in the third person and part in the first person):

“(i)      The RRT only considered physical harm, and even then understated the same he had in fact sustained 2 concussions from physical beatings of the police, and as a result, he suffered headaches practically every day.

(ii)               As soon as… my office found I am a homosexual I was fired. I was consequently forced to leave or they just fired me under various pretexts – under various official pretexts. As a result I was forced to take up a very low paid job which did not correspond to my qualification. Wasn’t up to my qualification and my education… it was difficult to find any job whatsoever. So I have nothing else but stay – keep that low paid job. According to the Convention this also must be considered as harm inflicted on to me. That was happening over a long period of time… constantly.

(iii)      All the time I worked. My whole length of my career. Starting from my first job after I went to work at school – after graduating from the university. The school director, the school principal let me know. Sort of made me understand that such people as I are not allowed to stay with children – to be with children. At that time there was legislation against homosexuals… So from my first job… that sort of occurred.”

26                  Pausing at this point, I found it difficult to identify the events and experiences, which the applicant related to the court as extracted above, within the scope of the narrative of events set out by the RRT in its reasons for decision. At least most of the above matters, contained as they were within the context of the applicant’s opening statements to the court, bear a remarkable resemblance to the kind of adverse experiences exemplified by Mr Archibald in his letter of advice as necessary to support a viable claim for refugee status. Mr Archibald’s letter of advice did not assert any such matters to have been necessarily established in the applicant’s testimony to the RRT. Nevertheless the applicant maintained to the court that “[t]his fact has never been reflected in the Tribunal and the Tribunal’s findings they just ignored it”, and further that “[e]verything was there in my application”.

27                  In any event, the RRT did take into account what may be described as the applicant’s claims of non-physical harm (see [11(iii)] above), but did not think that it was serious enough to amount relevantly to persecution. Moreover the RRT also considered economic circumstances concerning the applicant referrable to employment (see [11(iv)] and (ix) above), and paid particular attention to the physical harm which he claimed to have sustained (see [11(v)] and (viii) above).

28                  Counsel for the Minister drew my attention to what the RRT observed in [8] above, and in particular the concluding extracted paragraph commencing “Another submission was received directly from the Applicant…”, and to what comprised the RRT’s findings as to alterations and additions subsequently made by the applicant to his testimony initially given to the RRT, though prior to the RRT’s decision, including the starting allegation of sexual assault by a Vladivostok police officer advanced after the conclusion of the RRT proceedings. After discussion as to what matters had been placed by the applicant before the RRT gave its decision, albeit after the conclusion of the actual hearing of the applicant’s testimony and original submissions, the applicant stated to the court the following basis for his claim as to adverse financial implications of his homosexuality:

“…in the decision the Tribunal member did not even attempt… to analyse, to consider the economical (sic) hardship that I have. So, they didn’t consider… the implications… Because my parents supported me financially, I just couldn’t move to another place because of the money. In the Tribunal they asked me questions and I answered them. But the Tribunal member never asked me about that.”

29                  Subsequently as to the belated claim of sexual assault by the Vladivostok police, and the RRT’s alleged failure to properly consider the same, the applicant submitted to the court as follows:

“…they sort of dovetailed in a forceful way the facts… [t]hey forced the facts to their decision, its like there was a preconceived decision, they’ve already made a decision and they need facts, sort of forced the facts to substantiate this decision… For example… I claim that the officer, the police officer threatened to force… oral sex on me. Threatened. But… the Tribunal put it down that in such a way this oral sex actually took place… Then another thing my evidence… about having [been] beaten up by the police station, they misinterpreted these documents.”

30                  The applicant thereafter referred me to pages 9 and 10 of the RRT reasons for decision, where the RRT expressed doubt about the authenticity of a certificate in the Russian language purportedly issued by the “Ministry of Internal Affairs of the Russian Federation” on 1 August 2002, and certifying as to the applicant’s “detention” by the authorities for 3 hours on 20 October 1998. The RRT observed in effect that it was incongruous that the document was ever authentically created in the first place, particularly since the applicant’s recollection was that he was invited to attend “the authorities”, and not that he was actually detained, and moreover his claimed recollection of the interview was that “the interviewers moved to bury the whole matter over which it was convened in the first place”. The RRT found the applicant’s account of the alleged incidents involving the police and Internal Affairs in Russia to be puzzling, if not also unsatisfactory, being findings which I am unable to conceive to be realistically susceptible to being set aside.

31                  The next theme of the applicant’s submissions to the court concerned his claim to abuses of human rights which he allegedly sustained. The circumstances giving rise to such abuses were submitted by him to be as follows:

(i)         the police in Russia did not protect him, and further that “[t]he only thing you need is just move to another place and avoid their conflict… and change jobs”;

(ii)        the police did detain him and beat him up, though the RRT mistakenly recorded that the applicant had been beaten up in the prosecutor’s office, and not at the police station, adding as follows:

            “For some reason she (the Tribunal member) writes that I have been detained in the prosecutor’s office and she writes that this certificate had been issued by the Minister of Internal Affairs, when in fact, it had been issued by a local police station and signed by the head of the police station. Just about the date on the document, and about the late sort of date on this document, so it is with them with medical certificates. There is no problem, because the doctor’s working their for the clinics in Russia – all the doctors they are all together in the clinic. Each one has a medical book where every complaint is put down. After receiving this beating I went to see a doctor. And everything was reported in my medical book.”

(iii)       the applicant then referred me to his declaration of 27 May 2002 which was lodged with his application to the Department for a protection visa, and which was placed before the RRT: in the light of the unusual circumstances of the case and the submissions made by the applicant and the findings made by the RRT, I think that it is appropriate that I should take the course of reproducing the same in full below:

            “From the age of sixteen I was aware of being physically attracted to people of my own sex. This was a situation, which horrified me as in Russia a strong negative attitude towards homosexuality has always existed. Viewed as a shameful sin and crime, homosexuality was also believed to be a mental illness to be forcibly treated in a psychiatric institution. Thus from my adolescence onwards, I was led to believe that I was abnormal and socially unacceptable.

            As back as in childhood I learned what homophobia was. During my school years I become the object of cheers, mockery and open aggressiveness, which compelled me to lead a double life from an early age. This concealment of my sexual identity only served to produce deepening bouts of depression from leading such a schizoid lifestyle.

            In 1980 I entered the Far-East State University (Vladivostok). I had hoped that intelligent and educated people would have a more open mind to sexual minorities, but it was not to be. Although I concealed my sexual orientation as much as possible, when people found out, they shunned me totally. Once again I became a target for contempt, insults and threats of violence.

            In 1985 I completed my university degree. Because of my sexual orientation I had to change my job very often. As soon as my employers learned of my “perverse”, they expelled me under any pretexts. For instance, once I worked at the school No 31. When the headmaster found out that I was a gay I was dismissed immediately without any explanations. Also I was warned by the headmaster that if I complained about his unlawful conduct all authorities would be informed about my real sexual orientation.

            I was shocked and, at the same time, horrified of such prospects. So, I did not complain, however, people learned about my homosexuality anyway.

            Similar story happened to me on shipboard of “L.Sobolev”. In 1988 I was fired under pretext of staff reduction.

            Once I worked for DBNIGMU as an assistant for a group of scientists during their research in the Pacific Ocean. Every such trip was a nightmare for me. The crew treated me in a filthy and revolting manner. I reported all assaults to the captain but he only laughed at me. The ongoing campaign of victimisation ended up in physical assault by a ground of my shipmates. As a result I had a brain concussion.

            Back to Vladivostok I went to police and intended to lodge a complaint with the local police authorities. However my hopes of finding protection and help there were not justified. Even my statement was not accepted. The policemen scoffed and jeered at me. I was told I have no evidence to support my claim. They advised me to find at least three witnesses who could testify for me. Soon after this accident I was discharged under pretext of staff reduction.

            Shortly after that I managed to find an employment with “Primorskhidromet”. In spite of my intention to keep my sexual orientation in secret the rumours concerning my sexuality spread around.

            In 1993 the repeal of article 121 of the Criminal Code in Russia brought me some hope. Male homosexuality was not illegal any longer in Russia. In 1994 my secret life became known at work. As soon as it happened I became a subject of the vigorous campaign of humiliation targeted at my dismissal. I was asked to leave the company. I refused because I could lost my only source of income. As a result, I was demoted to the position of a fitter. I was employed as a fitter until I left for Australia.

            In 1998 I was stopped by my neighbour while walking home. He bashed me savagely while verbally abusing me. This beating continued for some time, including with threats of an even worse attack.

            I lodged a written complaint with the local police. The result of my complaint was the cross complaint from my neighbours requesting that I would be evicted from the building because of my lifestyle was offensive to them. When I visited the police station to make an inquiry about my complaint I was beaten by the policemen. In two days I lodged complaint about unlawful act of the police with the city office of the Public Prosecutor. Soon I received the phone call from the office inviting me for an interview. During this interview was informed that the police was acting lawfully. I was accused of slandering and advised to take my statement back otherwise they would open a criminal case against me.

            Eventually I realised that personal abuse, humiliation and threats to my life will be following me as long as I live in such homophobic environment. In this intolerant atmosphere, I was considered to be less than second-class citizens. With this attitude firmly entrenched in the community at all levels, I was the subject of hatred and discrimination. I was denied protection from violence under law.

            My life in Russia was under threat. With no other safe options open to me I decided to escape from my country where I have experienced only moral humiliation and physical abuse.

32                  The Minister’s written submissions, filed pursuant to the Registrar’s directions, and without the benefit of written submissions from the applicant in advance of the commencement of the hearing, were in substance as follows:

(i)         the RRT was entitled to disbelieve the applicant’s claims to refugee status, particularly given that the same had never been advanced until the applicant was detained more than 3 years after his arrival in Australia (Rajanayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 143 at [41]); moreover the applicant had arrived in Australia in the company of a male homosexual friend who had since returned to Russia, apparently voluntarily;

(ii)        the RRT was entitled not to be satisfied, consistently with s 91R of the Act, that there existed any Convention related reason for the Russian police response to his homosexuality as alleged by the applicant, or that there was any continuing police interest in the applicant at the time he departed for Australia (WAEC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 147 at [25-28]; WAEW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 260 at [17-18]);

(iii)       the RRT was also not satisfied that there was any real chance that the applicant would be denied effective protection by the relevant Russian authorities if the physical attacks upon the applicant, as allegedly occurred, were threatened in the future, that again being a question of fact ultimately for the RRT to determine;

(iv)       the merits of the RRT’s decision upon the allegations of the applicant were not susceptible to review, the Court not being concerned to correct mere administrative error or injustice, assuming that any errors of that description occurred, the same not normally, if ever at all, demonstrating legal errors (Attorney-General for New South Wales v Quin (1990) 170 CLR 1 at 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ));

(v)        findings of fact of the nature and kind made by the RRT were quintessentially a matter for the RRT, and did not in any event require detailed reasons, even if insufficient reasons had been provided by the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J; the Minister also cited in that context the following passage from Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 in the reasons for judgment of Heerey J at [3] (with whom Tamberlin J agreed and with whom Carr J also relevantly agreed):

            “The Tribunal was, of course, entitled, indeed bound, to assess the applicant’s credibility. It could reject her case if it contained inconsistencies or inherent implausibilities. A rejection by a decision-maker of evidence need not necessarily be based on the demeanour of the person giving evidence.”

(vi)       there had not been shown to have occurred any breach of the rules of natural justice; in that regard, it was readily apparent that the RRT gave consideration to post hearing written submissions subsequently furnished by the applicant; moreover the RRT could not be shown to have been biased against the applicant, nor to have harboured a “closed mind”, regardless of what further information had been placed before it, citing in that regard the following passage from Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531-2 (Gleeson CJ and Gummow J):

            “The state of mind described as bias in the form of prejudgment is one committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”

33                  I am of the opinion that the submissions of the Minister summarised in [32] above, and each of them, are essentially correct, and that accordingly the application for review should be dismissed. I do not think that either of the two conceivable jurisdictional errors, which were merely tentatively or cautiously identified by Mr Archibald, provide the applicant with any credible or otherwise viable basis for review of the RRT’s decision. As appears from my account of the findings of the RRT, the same do not have any persuasive footing in the light of the evidentiary findings of the RRT. In the second place, the applicant has not been able to provide, whether to the Minister’s delegate, the RRT or the court, a satisfactory explanation for the radically adverse circumstance that he made no application for a protection visa for more than 3 years after his arrival in Australia. The applicant’s presentation of his case for refugee status has since then undergone, to the extent already explained, a progression of changed or modified testimonies, in apparent tandem with his perception as to what might best advance his prospects for qualification as a refugee. On each occasion, the credibility of his claims has faltered in consistency with his previous narratives as to his circumstances experienced in Russia.

34                  The conclusions which I have reached render it unnecessary for me to consider the existence or otherwise of jurisdictional error in the RRT’s decision. I observe nevertheless that no evidence of procedural unfairness or absence of a bona fide attempt to exercise power on the part of the RRT is evident from the material placed before me (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24).

Associate:

Dated:              20 March 2003